Monday, March 31, 2008

Today the Supreme Court granted certiorari in an amusing but potentially important case from the 10th Circuit, Summum v. Pleasant Grove City. (10th Circuit panel decision here, preceded by dissent from denial of en banc rehearing and response to that denial). A city park in Pleasant Grove City, Utah, contains a 10 Commandment monument and some other displays and monuments that were donated by private organizations. Summum is a religious organization headquartered in Salt Lake City. It sought to place a monument containing the "Seven Aphorisms"---rival principles that Summumists (Summumians? Summumistas?) believe were given to Moses by God and then destroyed before the 10 Commandments were given as a second-best substitute. They're explained here. (You have to admire a religion that has as a tenet "Nothing rests; everything moves; everything vibrates." Heraclitus meets string theory!)

The city turned Summum down; Summum sued and eventually won in the 10th Circuit, which held that the park is a traditional public forum, and thus the city had violated the requirement of content-neutrality in accepting the Commandments but not the Aphorisms. The Supreme Court granted cert. For reasons that are not entirely clear to me, conservatives are supporting the city while liberals are supporting Summum in this case.

The argument in defense of the city is straightforward enough: There is a difference between private speech in a public forum and government speech (even in a public forum); the government's decision to accept a privately-funded and/or privately-erected monument can sometimes amount to the government making the message its own; thus, government's acceptance of the Statue of Liberty (a gift from France) would not have obligated it to accept, had it been offered by Nazi Germany, a Statue of Bigotry. (Credit to Lou Reed for that term).

That seems clearly right, but at the other end, one worries about the stopping point of this argument. Government should not be permitted to evade its obligations as the proprietor of a public forum for speech by designating messages of which it approves as "government speech," so that it can disguise censorship as non-endorsement. The real problem exposed in the Summum case is that we don't have a good method for sorting out government speech and private speech in the many contexts in which they are mixed. (For one promising effort, click here.)Posted by Mike Dorf

Sunday, March 30, 2008

Academic legal journals differ from academic journals in most other fields in two principal ways: 1) Most academic legal journals are student-edited; and 2) authors can submit to multiple legal academic journals simultaneously. By contrast, in most other fields, the journals are faculty-edited (i.e., "peer-reviewed") and, perhaps as a result, authors can only submit to one journal at a time. If your first-choice journal rejects your article (and doesn't give you an opportunity to revise and re-submit), only then can you submit your article to a second journal and perhaps thereafter, successive journals.

Most academics in fields other than law, and quite a few legal academics, find it bizarre that students--typically students in their second year of law school--make decisions about what articles to publish. Having published articles in both student-edited and peer-reviewed journals, including faculty-edited law journals and faculty-edited physics journals (back before I became too stupid to understand, much less write, academic articles in physics), I think the criticism is fair, but that the peer review process has its own flaws. For example, in most faculty-edited journals, authors are entirely responsible for the their footnotes. That's fine so long as authors are conscientious and careful, but it sometimes leads to the publication of fraudulent data. Michael Bellisiles published his key, and apparently fraudulent data about Colonial-era probate records of firearm ownership in peer-reviewed history journals. Nobody asked to see his source material. Had he sought to publish his work in a typical law journal, the student editors probably would have demanded documentation.

If I were re-designing the law journal world, I'd want to try to keep students involved for the value they add in verifying sources but shift a substantial portion of the article selection process to faculty. The students would likely resist such a change. Part of the attraction of being a law review editor is the power to make publication decisions. But I think the resistance could likely be overcome. Students who work for law reviews do so primarily because they're told it's a prestigious thing to do. If they were still told the same thing after faculty had wrested the selection process from them, the students would still sign up. Whether faculty would be willing to do this work is another question, but I suspect the answer is probably yes. Already, many student-edited law reviews seek input from faculty on publication questions. Whenever I am asked for my opinion about such matters and I consider myself qualified in the field, I feel some obligation to help out. (And below, I'll suggest an even more radical change for legal scholarship.)

Now an observation on phenomenon number 2: the ability of authors to submit to multiple journals simultaneously. I haven't done any empirical work on this subject, but I have good anecdotal sources for the following. As quantity standards for tenure and entry-level hiring have ratched up at most law schools in the last 20 years or so, the number of articles written and submitted for publication has increased by what I would guess is about a factor of 2 or more. This has resulted in a proliferation of journals. For example, Columbia, where I now teach, has 14. Harvard, where I went to law school, also has 14. Cornell, where I shall shortly teach, is a substantially smaller school, and has a modest 3 student-edited and 2 faculty-edited journals.ExpressO, a website that facilitates the submission of journal articles, has over 550 journals in its database.

An aspiring academic with an article to peddle sends it to 100 or more journals, and then, as soon as she gets an offer of publication, asks more prestigious journals to expedite their consideration of the article. This results in all sorts of games. Many journals now give very short deadlines (as short as an hour or even take-it-or-leave-it offers), especially if they make an offer after an expedite request. Conventional wisdom for aspiring academics (who, unlike many established scholars, don't have a reputation or institutional affiliation on which they can rely to get their articles read), holds that the only way to get one's article out of the pile at a relatively high-ranking journal is to first get an offer from a relatively low-ranking journal, which, no doubt, must infuriate the editors of lower-ranking journals; they are serving, in effect, as a screening mechanism for other journals.

ExpressO is both an effect and a cause of the chaos that ensues from the possibility of simultaneous submission to hundreds of journals. In the pre-Internet age, submitting to multiple journals cost time and money. ExpressO reduces the marginal cost (in time and money) of submissions to nearly zero. Many schools have institutional accounts that pay forExpressO even for alumni aspiring to academia, and even for those who pay the bill themselves, at $2 a pop, the marginal price is still pretty darn low. ExpressO was created less than 5 years ago, and was pretty clearly a reaction to the need of relatively unknown authors to send out their drafts to a great many journals simultaneously. But in facilitating just that, it has almost certainly exacerbated matters. More submissions per author means less time per editor to review each article submitted.

ExpressO has thus operated much like an expressway to a suburb/exurb. People leave the urban core and ring suburbs, lured by the promise of cheap housing and a bucolic lifestyle. But then others join them and pretty soon the transportation network that once served farmers adequately is unable to handle the rush of commuters. Government responds by building expressways, which ease the commute for a short time, but then the very existence of expressways induces more people to move, and pretty soon the exurb-dwellers are spending two hours driving to work and the trees have been replaced with strip malls.

The solution to the expressway problem is to make it attractive for people to live close to where they work. The solution to the "ExpressO problem" may be the opposite: Instead of concentrating publications in a small number of journals, the answer might be a radical expansion of publications, to wit: self-publication on websites and the like. That's hardly a crazy idea. We would lose the credentialing function that law review publication serves but that has always been the weakest portion of the existing system, as it leaves to 2Ls the decision about what is publication-worthy.

Friday, March 28, 2008

In the current heated political climate, most of the discussion about the Clinton and Obama campaigns has focused on tactics, strategy, and the potential harm to the Democratic Party of a continuation of Clinton's "kitchen sink" approach (or, as one pundit has described it, the "Tonya Harding Strategy"). As much fun as it is to talk about such issues, I've been thinking lately about the candidates' policy positions. I guess someone ought to.

Throughout the campaign, I've been genuinely confused by the accepted wisdom that both Clinton and Obama ought to be equally acceptable to a liberal/progressive like me. Before the gloves came off, people were talking about a Dream Ticket of Clinton and Obama, or Obama and Clinton. All I could think was, "Are they kidding? Why would I want Clinton to be president or vice president? Obama wasn't my first choice, but he's at least arguably motivated by the things that concern me. But Clinton?!" I have been trying for months to figure out where the disconnect comes from, that is, why I view Clinton as anathema while some other liberals and progressives have embraced her or at least view her as a fine second choice.

Last Sunday, the NYT Magazine ran a short article by Matt Bai. In the article, Bai suggested in passing that Clinton's primary wins in bigger states like Ohio might be explained by the trauma of the economic downturn, which might make voters in those states "responsive to Clinton's more pragmatic message." My immediate thought was, "What 'more pragmatic message'? For that matter, what message?" Upon reflection, I realized that I while I have been following Clinton's policy proposals, I don't really think of Clinton as having any message at all, much less one that can be described as pragmatic or idealistic, liberal or conservative, vague or specific. Why have I not formed such judgments about her policy proposals?

The answer, it turns out, is quite simple: I do not believe anything that Hillary Clinton says. I do not take her specific policy proposals seriously, because I have no reason to believe that she would even try to deliver on anything that she says to appeal to voters like me. How can I be so sure? This is not merely a matter of believing that all politicians over-promise and fail to deliver. Even though campaign promises are often broken or forgotten (or simply cannot be kept for reasons beyond the control of the promisor), that is not the issue here. Clinton is different in a fundamental way. I have come to believe that Clinton, unlike any other politician I can think of (with the clear exceptions of Rudy Giuliani and Mitt Romney), has no fundamental beliefs other than that she should be President.

As I have noted previously on Dorf on Law, Hillary Clinton has continued her husband's habit of capitulating to conservatives. While this is sometimes called triangulation, it is perhaps more accurate simply to call it unilateral disarmament. It is not that the Clintons shrink from a fight. It's just that they are generally much more willing to fight against liberals than conservatives. NAFTA, the death penalty (AEDPA), and many other issues in Bill Clinton's administration brought forth fierce fights between Clinton and liberals. Hillary Clinton's health care fiasco started by ruling out any progressive option and ended with a proposal to create a bureaucratic nightmare designed to please entrenched health care interests. She responded to the 2004 election by, as I noted in my earlier post, selling out a pro-choice Democrat to get an anti-choice Democrat elected to the Senate. Her vote to authorize the invasion of Iraq was a huge disappointment and a huge mistake. Most egregiously, her willingness to declare that John McCain is clearly qualified to be commander-in-chief while Obama is not indicates that she is willing to take the conservatives' side when it suits her immediate needs. (The rather curious idea that she is more qualified to be commander-in-chief than Obama is another issue entirely.)

In short, Hillary Clinton's actions to date tell me that I can't trust her. This is ultimately why I think that liberals like Paul Krugman have it wrong. Krugman argues in his NYT op-ed today that "it's important to take a hard look at what the candidates say about policy," which is certainly a reasonable suggestion. He then concludes that Hillary Clinton's policy proposals on dealing with the mortgage crisis and on health care "suggest[] a strong progressive sensibility." Upon reflection, I can see his point. Even though I have moved into Obama's camp, I've been disappointed by his excessively cautious approach to various economic issues. (I've also been very disappointed that both he and Clinton continue to buy into the notion that Social Security faces a "crisis," but that's a subject for another day.)

If Krugman is right that Clinton's policy proposals are slightly more to my liking than Obama's, why do I support Obama? For that matter, why do I not only support Obama but also find Clinton so unacceptable as the possible Democratic presidential nominee? Krugman provides the clue: "Do these comparisons [of the candidates' policy proposals] really tell us what each candidate would be like as president? Not necessarily -- but they're the best guide we have." Krugman is wrong. We have more than Clinton's policy proposals to guide us. We have her pattern of behavior. Actions speak louder than words, and I have learned not to believe Hillary Clinton's words.

Thursday, March 27, 2008

In order to prove and recover for defamation, public figures and officials must prove that the harmful publication of the erroneous information was done with “real malice”. In contrast, for private persons, demonstrating negligence will suffice. There are several justifications for this disparity. One of these justifications is that public figures and officials, unlike private persons, have access to the mass media, allowing them to defend their good name and control their public persona. In contrast, the presumption is that when the media shines a spotlight on a private person, that person is as helpless and powerless as a cork at sea. In the aftermath of the Spitzer scandal I ask myself whether this factual observation, underpinning the "access justification” for the private/public distinction in the law of defamation, is as valid as it once was.

For me, the most interesting aspect of the Spitzer scandal was the role played by Ashley Dupre's (AKA "Kristen") MySpace page. The promo announced that on the "news at six" they would expose the request for privacy Dupre posted on her web page; it then dawned on me that I was not dependent on Fox News (yes I know…) for hearing what the mysterious Kristen had to say. When I found her web page (which by now has disappeared, replaced by what looks like a commercially oriented page) it already had over 10 millions hits!

Today we all have access to a mass media and we can all create our own public persona using a simple web page. What the majority of us lack is the most precious commodity of the information age: "name recognition." Few knew or cared to know the story and opinions of Ashley Dupre. Before the scandal broke she had access to a mass media in the form of her web page, but due to her anonymity she only had an unrealized or potential access to the public. The moment the spotlight was pointed at her she was also instantly bestowed with name recognition. Millions were interested in the story, opinions and pictures of "Kristen," and somehow many of them knew it was only a Google search away.

Considering the pervasive access to Internet-based mass media, today, unlike the days of N.Y. Times v. Sullivan, when private people are thrust into the public eye the byproduct is that they are given, ipso facto, a voice and a stage – allowing them to protect themselves. The more intensive the media focus on an individual the more amplified the "voice" of that individual becomes. It is a new form of protection that is organic to the system, not requiring legal intervention. Granted, this shift is only in its early stages; the power of the traditional exclusively held media is still much much stronger than freely accessible Internet based media. Nevertheless, the reality on which the "access justification" for the disparity between public officials and private persons has traditionally been based, is eroding.

How about those yuksters up at the Supreme Court? In yesterday's oral argument in Indiana v. Edwards, Justices Kennedy and Scalia each made fun of lawyers (sort of), but to support different results. The case presents the question of what standard of competency a defendant must meet in order to waive his right to counsel. Current law indicates that competency to stand trial is the same standard as competency to waive counsel.

This is odd. To be competent to stand trial, one must be able to understand the proceedings and assist in his own defense. A defendant could satisfy that standard and still be unable actually defend himself. By way of analogy, I think I would be competent to assist a professional basketball team. I understand the game reasonably well and I could assist by doing things like getting towels and Gatorade for the players. But I certainly am not competent actually to play in a professional basketball game.

Justice Kennedy took a somewhat different tack at oral argument, distinguishing technical knowledge of the law from the judgment necessary to conduct a trial. "There are all kinds of nuts who could get 90 percent on the bar exam," he said (quoted in the NY Times story here). But Justice Scalia, who values the 6th Amendment right to represent oneself to a greater degree, took a very different view. In response to the state's argument that the standard ought to be whether the defendant can communicate coherently, Justice Scalia replied, in an apparent reference to Supreme Court advocates: “Cannot communicate coherently? I sometimes think that the lawyers cannot communicate coherently.”

Wednesday, March 26, 2008

Justice Breyer's dissent in Medellin v. Texasprovides textual, historical and practical grounds to reject the majority's presumption that, absent language to the contrary, a treaty should be deemed non-self-executing. As I noted yesterday (here), Breyer's best point is a straightforward reading of the Supremacy Clause, which makes treaties "the supreme Law of the Land." But in addition to the points made by Justice Breyer, another argument has been advanced by critics of the Medellin ruling. Here is what my colleague Lori Damrosch, quoted in USA Today, had to say:

The court admits that the international judgment is binding on the United States in international law, but it does not accept that the courts of Texas are bound to carry it out. ... This perplexing result will make it more difficult for the United States to insist on compliance by other states … under the Vienna Convention and under the provisions of at least 70 other (comparable) treaties.

Why is this a "perplexing result?" As even Justice Breyer's dissent explains, many other countries treat treaties as non-self-executing as well. Quoting Justice Story, Breyer explains that our Supremacy Clause marked a change from British practice. So, while one can agree with Breyer that Medellin wrongly interprets the U.S. law of foreign relations, that shouldn't make the result perplexing to other countries.

Professor Damrosch is probably right that the bottom line in Medellin will make it more difficult to extract reciprocal compliance from other signatories to the Vienna Convention and comparable treaties. But presumably that's because Congress has failed to enact implementing legislation, not because the Court has required it to do so. And that points to the real problem here: The absence of implementing legislation for many treaties that would, under the majority test in Medellin, require implementing legislation, means that the U.S. is probably in breach of its treaty obligations to a much greater extent than its treaty partners. In countries in which it was generally known that treaties required implementing legislation, we can expect a practice of consistently enacting such implementing legislation to have arisen. The U.S., lacking such a practice, is thus now more likely to be in breach.

What can Congress do? Justice Breyer says in his Medellin dissent that it can't simply adopt a rule implementing all ICJ rulings, because some of them will be sufficiently sensitive that they shouldn't be self-executing. Perhaps, but consider as an alternative a rule of treaty construction, to be codified as an amendment to the Dictionary Act (1 U.S.C. sec. 1, et seq), providing as follows: "Treaties shall be presumed to be self-executing, unless the express text or subject matter and context as a whole make them inappropriate for self-execution."

Tuesday, March 25, 2008

Today's Supreme Court decision in Medellin v. Texas has something for everyone. To greatly oversimplify, Texas violated Medellin's rights under the Vienna Convention on Consular Relations when it failed to inform him, upon arrest, of his right, as a foreign national, to consult with diplomatic authorities from Mexico. Medellin was eventually convicted of murder and sentenced to death, but then on state collateral review, he raised his Vienna Convention objection for the first time. That was too late, under the Texas rules, and so the Texas courts didn't reach the merits of his claim. Meanwhile, the International Court of Justice (ICJ) said that states are entitled to enforce reasonable procedural rules affecting how someone raises a Vienna Convention claim, but that rules like the Texas rule are not reasonable under the circumstances. (The best argument for the ICJ position is that the procedural default is a Catch-22: The prisoner doesn't raise his objection in a timely fashion because he wasn't informed of his Vienna Convention rights, which is itself the violation.) The Supreme Court, in the Sanchez-Llamas case two years ago, said that while the ICJ's interpretation of the Vienna Convention was entitled to "respectful consideration," it alone was the final arbiter of the meaning of this treaty as far as domestic effect was concerned. The Court then said that states (Oregon and Virginia in that case) could apply their procedural default rules. That left the United States in breach of its international legal obligations but provided no remedy for individual claimants. Enter President Bush, an unlikely champion of international law and the procedural rights of criminal defendants: He issued a memorandum directing state courts to give effect to the ICJ's ruling in the Avena case. In Medellin's case, the Texas Court of Criminal Appeals told the President to take a walk.

Today's ruling pitted two politically conservative positions---1) distrust of foreign and international law and 2) states' rights---against a third one---3) Presidential power. The combination of the first two was enough to overcome the third. Hence, a victory for Texas and a defeat for the Bush Administration (although I suspect that many in the Bush Justice Department and throughout the Administration are perfectly happy to lose this one).

The Medellin case will likely be cited for some time for the proposition that treaties are rebuttably presumed to be non-self-executing. Justice Stevens, who concurs in the judgment but not in the opinion of CJ Roberts, writes that the UN Charter---which obligates state parties to "undertake[] to comply with the decision of the [ICJ] in any case to which it is a party"---is not crystal clear but is, on balance, best read to commit the compliance decision to the political branches. And he agrees with CJ Roberts that this means Congress, for the President has neither any delegated or inherent power to convert a non-self-executing treaty into a self-executing one by memo.

The dissent by Justice Breyer makes much of the language of the Supremacy Clause: ". . . all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." That's the same language that makes the Constitution itself applicable without any implementing legislation, and so one would think that the default rule ought to be that treaties are self-executing---unless they expressly purport not to be. A treaty that only obligated the United States "to enact legislation implementing this treaty" would still be the "supreme Law of the Land," but what it would guarantee would still depend on Congressional action.

In two important senses, very little was really at stake in Medellin. First, even if Medellin had won, all he would have gotten would be an opportunity to try to prove that his lack of consular consultation prejudiced his defense. And it's hard to see how he could have shown that, a point Justice Stevens makes in chastising Texas for not following the lead of Oklahoma by voluntarily providing the hearing the President purported to require.

Second, the disagreement over whether to presume that treaties are self-executing or non-self-executing, or whether to have no presumption at all, is a disagreement only over the default rule. If there is the political will to make a treaty self-executing, there will almost always be the political will to enact implementing legislation that renders the self-execution question moot: It's a very rare law that can garner support of 2/3 of the Senate (required for treaty ratification) but can't also get a majority of the House.

Still, there is a real difference here. The relevant treaties in play are multilateral ones over which the U.S. is merely one of many actors able to negotiate language. Further, disputes over treaty application occur long after ratification, when the political dynamics in Congress may have changed significantly. And finally, as we know from many contexts, default rules matter enormously.

Monday, March 24, 2008

As the American death toll in Iraq topped 4,000 just on the heels of the 5th anniversary of the start of the war, Vice President Cheney had this to say:

The president carries the biggest burden, obviously . . . He's the one who has to make the decision to commit young Americans, but we are fortunate to have a group of men and women, the all-volunteer force, who voluntarily put on the uniform and go in harm's way for the rest of us.

The bit about the burden on President Bush relative to the troops and their families is simply too preposterous to discuss, but the invocation of the volunteer nature of our military force merits a few words. Cheney's point in using both the adjective and adverb form of "volunteer" seems to be something like this: Don't feel too bad for the dead, the wounded, the traumatized, and the merely extremely disrupted. They knew what they were getting into. Very nice.

But there is also a serious point here too, and it connects, albeit obliquely, to the Second Amendment. There is no doubt that a core concern of the Anti-Federalists and others who fretted over Congressional power to arm---and therefore potentially disarm---the state militias, was their fear of a standing army. Militias composed of citizen-soldiers, Founding Era mythology asserted, would defend liberty, while standing armies of conscripts and mercenaries could become an agent of tyranny. There is disagreement about exactly who got to retain control of their weapons and when---that's what the Heller case is about---but no serious historical question that the fear of standing armies was a standard view in the Founding generation.

Whether that view was warranted even in those days is an open question. Yes, the Minutemen fired the shot heard 'round the world, but it was the Continental Army---eventually a band of seasoned full-timers---who won the Revolutionary War (with help from the French). George Washington was constantly complaining about the militiamen who periodically came under his command.

These days things are more complicated. Our national armed forces includes nationalized units of the state militias, and all are volunteers. We pay our soldiers, sailors and marines, but not enough to warrant the conclusion that they are "mercenaries" in the way that the term was used (and dreaded) in the Eighteenth Century. Thus, it's probably fair to say that, in virtue of their volunteer status, our modern armed forces come reasonably close to the bulwark againsttyranny that the Founders thought the state militias would be. And it's true that we have absolutely no reason to fear that our armed forces could be used against us in the way that, for example, the people of Tibet or even parts of China that are principally ethnically Chinese have to worry about the PLA.

But the Founders weren't worried about standing armies only because they feared a standing army would tyrannize the domestic population. They also feared that a standing army without sufficient connection to the mass of the people would be used by political leaders to entangle the nation in foreign wars. A volunteer force was an antidote to this problem because service would be nearly universal (at least among adult white men). What the Founders did not contemplate was a volunteer force that was sufficiently small relative to the population that its members could be sent into indefinite foreign adventures without sparking a mass movement of the people.

As promised last week, my latest FindLaw column argues that there's almost no way for the Supreme Court to strike down the challenged law in D.C. v. Heller---as it appears inclined to do---without addressing both the standard of judicial review and the question whether the Second Amendment is incorporated against the States. Unless that is, the Court writes the sort of opinion that it wrote in several important cases last Term, purporting to adhere to precedents but in fact disregarding them or making other, equally unpersuasive moves.

Here I'll raise a question about CJ Roberts and the Roberts Court more broadly. What is attractive to him/them about this brand of faux minimalism (which even Justice Scalia decried last Term in roughly the same way)? One possibility is that Roberts, Alito and occasionally Kennedy are in fact maximalists who feel the need to pose as minimalists to maintain an image of moderation consistent with their statements at their respective confirmation hearings. But that's cynical and probably inaccurate. (It's also pretty clearly wrong about Kennedy, who often writes maximalist opinions.) I suspect that Roberts and Alito (and this was true of Justice O'Connor too) actually believe in the virtues of minimalism and so strive to write minimalist opinions. But that hypothesis leaves us with an even greater mystery: Given that these people are excellent lawyers, how can they fool themselves that an opinion inconsistent with earlier precedents doesn't overrule those precedents?

I actually don't have a hypothesis for that question and so invite discussion in the comments. Meanwhile, perhaps I'll be proven wrong in Heller and the Court will fully deal with the review standard and incorporation questions. And actually, I'd PREFER a somewhat disingenuous opinion if it leaves the Second Amendment unincorporated, as that would leave cities and states around the country free to enact strict gun control laws if they see fit---an approach that should at least have some appeal to those who value federalism.

Saturday, March 22, 2008

Here's a brief follow-up to Neil's post yesterday on Jeff Rosen's NY Times magazine article on the Supreme Court. The Chamber of Commerce has not restricted its activity to training business-side lawyers for U.S. Supreme Court arguments. It has also been active at the state court level in getting business-friendly judges elected. In the Wall Street Journal today, James Sample of the Brennan Center observes: "The U.S. Chamber of Commerce got involved in 13 judicial races in 2004 and won 12."

Sample's larger point (available here) is that the flood of money in state judicial elections is creating an extraordinary appearance (and probably the reality) of impropriety. Worth a read.

Friday, March 21, 2008

This past Sunday, the New York Times Magazine printed an article by my GW colleague Jeffrey Rosen provocatively titled, "Supreme Court, Inc.: How the nation's highest court became increasingly receptive to the arguments of American business." In the article, Rosen describes a decades-long effort by the U.S. Chamber of Commerce to change legal jurisprudence in this country such that the Chamber's members (that is, large American corporations) would be more likely to win in court -- and by implication, less likely to be sued in the first place.

Rosen's article is characteristically well written and engaging, and I learned a lot from it. One can reasonably question whether Rosen puts too much emphasis on the importance of Supreme Court litigators, since he spends a great deal of time describing how the Chamber went about hiring the most brilliant legal minds it could find -- many, like Rosen, former Supreme Court clerks and thus presumptively brilliant. These star litigators then went on to win various cases in front of the Court. One of these stars was so "dazzling" in an argument before the Court that her side won in a unanimous decision. I'm sure that I am not alone in suspecting that 9-0 decisions do not hinge on the performance of superstar litigators; but even if my suspicion is right that the Court was going to find in favor of a major corporation in such a case no matter who did the talking, that could merely mean that Rosen is otherwise correct that the Chamber of Commerce has succeeded in changing the law and the composition of the Court to the liking of big business.

Rosen certainly caught my attention with a quote from Ralph Nader to the effect that Nader's young public-interest lawyers are quitting because they're tired of losing so often. Rosen's cause-and-effect might be a bit overstated, in other words, but there is probably a strong case to be made that the legal landscape (including the Supreme Court) has become much less receptive to 60's-style public interest arguments and more receptive to the arguments of the Chamber's members.

I was, however, caught a bit off guard by Rosen's description of the Court's "pro-business jurisprudence" as reflecting a consensus among "liberal and conservative elites about the value of free markets." He suggests that these elites have "come to share a relatively laissez-faire, technocratic vision of the economy" and that this vision explains the turn in favor of big business. Discussing one example, Rosen quotes his source at the Chamber of Commerce as describing Arthur Andersen's win before the Court (overturning a criminal conviction for document destruction related to Enron) as "a very important win for big business."

We thus have at least four concepts being used interchangeably here: pro-big business, pro-business, pro-free markets, and laissez-faire. This is not the forum in which to explore all of the ways in which these things differ (for two takes on this from the right side of the political spectrum, see here and here), but it should at least be obvious that big businesses and small businesses often have conflicting agendas, that businesses of all kinds have incentives to make markets less "free" (if only because more competitive markets tend to have lower profits than less competitive markets), and that laissez-faire has no coherent meaning because the laws that make markets work (contract laws, tort laws, criminal laws, securities laws, corporate laws, and on and on) are the creations of government.

These points are extraneous to Rosen's story, but it would be helpful if commentators (and Rosen is hardly alone here) would cease conflating the interests of General Motors with free markets, capitalism, and the American Way.

Thursday, March 20, 2008

Last September I argued (here) that peremptory challenges are a gigantic waste of time. But so long as we have them, courts will be faced on occasion with the task of deciding whether one side or the other has used its peremptory challenges unconstitutionally. Yesterday, in Snyder v. Louisiana, did trial courts and trial lawyers a great service in actually grappling with the details of one such case.

Snyder was convicted of first-degree murder in Louisiana after the prosecutor used his peremptory challenges to strike all 5 of the 36 prospective jurors who were African American. Snyder's lawyer filed a timely objection but the trial judge credited the prosecutor's supposedly race-neutral explanation. Normally that would have been the end of the matter, as a judge's findings of fact---including the factual question whether a peremptory challenge was race-based---are entitled to substantial deference on appeal. But the Supreme Court made clear yesterday that there is a limit to deference.

Justice Alito, writing for all of his colleagues except for Justices Thomas and Scalia, showed why the prosecutor's explanation was too flimsy to stand up. He focused on one prospective juror who was challenged because, the prosecutor said: 1) He was afraid of missing student-teaching he needed to do as part of his university studies; and 2) He appeared nervous. As Justice Alito noted, many other prospective jurors---including white jurors with more serious reasons for wanting to avoid serving on a long trial---were not challenged. Thus, Justice Alito concluded that number 2 couldn't be the real reason. As for the nervousness, Justice Alito pointed out that the judge never said he was relying on nervousness, and that the colloquy over the prosecutor's reasons occurred long after the prospective juror was examined.

In dissent, Justice Thomas said that nervousness nonetheless counts as a race-neutral reason, and that there is no requirement that a judge make a finding about which race-neutral reason he accepts. Maybe that's right, but what Justice Thomas overlooks is that the obviously bogus he-wants-to-be-somewhere-else reason itself gives rise to an inference that race was the real reason for the strike, and that this inference---in combination with the stark fact that the prosecutor used peremptories against ALL the African-American jurors---fatally undermines the nervousness claim.

Although I still would prefer a regime in which there were no peremptory challenges, if we're going to have them subject to the prohibition on racial discrimination, trial judges and lawyers need guidance in discerning what counts as a valid race-neutral explanation. For the most part, the Supreme Court has punted on giving such guidance, and yesterday's decision, as a technical matter, continues to treat the issue as one committed primarily to trial courts. But the Justices deserve credit for working through the actual facts of one of these cases so that front-line actors will have some real sense of how to apply the general requirement that they discern race-based from race-neutral reasons.

Wednesday, March 19, 2008

Yesterday's oral argument in D.C. v. Heller (audio here and transcript here) strongly suggests that there are five votes for interpreting the Second Amendment as protecting the right of individuals to possess and use firearms for self-defense against human (and per Justice Kennedy's suggestion) non-human attackers. (Justice Kennedy suggested in a rhetorical question that settlers out beyond the reach of organized forces needed firearms to protect themselves from "hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that").

As numerous commentators have already indicated, if the Court does indeed find an individual right of private possession and use of firearms, that will be the beginning, rather than the end of the matter. One thing the Court will have to decide is what standard of judicial review applies to laws infringing the right. Another question will be whether the right is incorporated against the States or only applies against the federal government. Because the Heller case involves the District of Columbia, it doesn't directly present the incorporation question, since the District is not a state: The Second Amendment (whatever it means) applies of its own force to federal laws (including DC laws enacted pursuant to power devolved via Home Rule) governing the District, whereas the Second Amendment, if it applies to state laws, would do so via the Fourteenth Amendment's incorporation of it.

As I shall elaborate at greater length in my FindLaw column for next week, however, the Court may not be able to duck the incorporation question in Heller, because the District argues that the federal government has at least the same power to regulate in the District that States and municipalities have to regulate in their respective domains. To reject that argument---as the Court must in order to find an individual right applicable against DC regulation---the Court needs to address the incorporation question. Or so I'll argue next week.

Tuesday, March 18, 2008

Attention has recently focused on the incendiary comments of Rev. Jeremiah Wright, Barack Obama's pastor at Trinity for many years. In the clips -- shown repeatedly on the news and on web sites -- Rev. Wright expresses contempt and rage at rich whites who he believes control the country and at the U.S. itself. He also praises Obama as the only candidate who knows what it is like to be black in America. Predictably, questions about Senator Obama's own racial views and his own patriotism have arisen in the wake of these clips. Some talking heads have suggested, in fact, that his affiliation with a person who expressed such offensive sentiments, apparently on more than one occasion, may disqualify him from seeking office. Such claims are foolish. And if we all pause to consider them for a moment, their patent absurdity will become inescapable.

Barack Obama is a grownup, not a naive child who clings only to people who are perfect and who view the world exactly as he does. As he expresses more poignantly and eloquently than I could ever hope to do, he attended the church that he did for so many years because it was a place where he found a loving, nurturing, and kind community. It was a place where the pastor expressed religious faith in a manner that resonated with Obama's inner world; it was a place where the pastor emphasized the importance of serving the poor and of helping the sick. It was and is, as Obama describes it, a typical black church on the south-side of Chicago.

In that church worship rich and poor, welfare moms and doctors, A students and former gang-bangers. And significantly, in that church worship people of different generations -- those who grew up in the 1950's and '60's and view race relations with pessimism and bitterness, and those who grew up in the generations that followed, many of whom were able to seize opportunities of which their parents and grandparents could never have dared dream. Barack Obama is not cynical or bitter or hateful, but he understands and loves many people who are all of those things, among blacks and among whites, and that understanding is his strength, not his weakness.Barack Obama was a classmate of mine at Harvard Law School. I don't know that he could pick me out of a lineup, but I remember him well, and I remember him fondly. No matter how heated the political debates that took place in our classroom -- about race, about rape, about crime -- he always spoke with wisdom, humility, and calm resolve. He was an adult, even in his 20's, when most of us were still quite happily ensconced in the narcissism of extended adolescence. He was self-confident but not arrogant, and he did not strike me or anyone in the class as angry, dismissive, or bigoted in any way. Indeed, though his views on issues were never a secret, everyone respected Barack Obama, because he listened to what his classmates had to say -- even when what they had to say was radically and fundamentally at odds with his view of the world.

All of us now have or have in the past had people whom we have loved but who made remarks that we found alienating and offensive. Some people even marry individuals whose political views are diametrically opposed to their own. And the people we love -- often those who are much older than we are -- look at the world and see a very different place from what we see. Such people sometimes embarrass us by expressing ideas that we find repugnant. And yet other times, they fill us with pride and remind us of why we have stood by them. We can appreciate what such people offer us in friendship, mentoring, community, and connection, without signing onto every speech they give. For Barack Obama, one such person is undoubtedly Rev. Wright. Much of what he said inspired Obama as a Christian, and he offered a congregation of people whom Obama views as his church family. He officiated at Obama's wedding and baptized Obama's children.

Obama has not insulated himself from angry people or from bigotry. He has instead striven to find the good in everyone he has known, and he has overlooked people's imperfections and identified their strengths. Far from disqualifying Barack Obama from the office of President of the United States, this makes him all the more appealing. I am not sure whether I have as much faith in the American people as Barack Obama does. One test of that faith, however, will emerge as the country decides how to handle the fact that our most talented, inspiring, intelligent, and wise candidate for office has a place in his heart for an imperfect pastor.

With March Madness nearly upon us, this might be a good time to reflect upon the effects of the "one and done" phenomenon. A couple of years ago, the NBA changed its rules so that rookies are not eligible until they are at least 19. As a result, high school players who would have gone right to the pros (think Kobe Bryant, Kevin Garnett and Lebron James) now must wait a year, and so most of them end up playing college ball for exactly one year before declaring themselves eligible for the draft.

Reasonable minds can differ over whether the 19-year age minimum is, on balance, a good idea. The NBA adopted it in part because it wanted (slightly) more mature players. Yet there are many reasons in principle to think the policy does more harm than good, aptly summarized by the Big O, NBA legend Oscar Robertson, in a NY Times op-ed last year. To be sure, the minimum age of 19 has been defended on the ground that it leads star high school basketball players to go to college for a year, where perhaps they'll discover that they like the idea of getting an education. Even if they don't finish as 22-year-olds, they might go back later.

There have been star athletes who, to their credit, did just that. Julius Erving (aka Dr. J), who went to U. Mass, is one famous example---although in the case of such superstars, the degree is more about a personal sense of accomplishment and being a good role model than preparing for a post-basketball career. Dr. J rightly earned kudos for persevering to get a degree when he didn't in any practical sense need it, but the policy won't do much good for the many athletes who ultimately don't make it in the pros, and as the Big O notes, those are the ones we should be worried about.

Moreover, it seems highly unlikely that a ball player who otherwise would have declared himself draft-eligible but goes to college to wait for his 19th birthday will learn much of anything in that time, unless he actually wanted to go to college in the first place (in which case the policy was largely unnecessary for him). The reason is that a student planning to go to college for only one year need not take his studies seriously. Failure to maintain a minimally adequate record would result in a player's academic ineligibility but not until after the NCAA Tournament is over, and by then the one-and-done athlete is, well, done.

So, on balance, I side with the Big O on this policy. Universities committed to winning big-time Division I men's sports (i.e., football and basketball) already field teams with only a tenuous connection to the larger student body. One and done removes even the pretense that a college's sports teams are anything other than unpaid professionals that are sponsored by, but not part of, the schools.

And oh yeah, and in the spirit of hypocrisy, don't forget to sign up for the Dorf on Law March Madness pool.

Monday, March 17, 2008

For reasons I don't yet understand, subscribers to Dorf on Law by email have been getting emailed copies of blog posts that are weeks old and that they should have received long ago. I'll look into this and will, I hope, fix it soon.

For those of you who lack access to a NCAA tourney pool of your own---or more likely, for those of you who think you'll do better competing against a bunch of law geeks than the people at your office---I've created a "Dorf on Law" group pool. It costs nothing to join and you win nothing if you fill out the winning bracket, nothing that is, other than everlasting glory, i.e., kudos on this blog. To sign up, you first need to click here. That will take you to the ESPN tourney page. If you don't have an ESPN username and password, you'll need to create one. This process takes about a minute. I advise you to uncheck the defaults, which sign you up for spam.

After you pick a username and password, create your bracket and click on join a group. Search for "Dorf on Law," which should come up right away. (I had to pick a group motto, so I chose a quotation from CJ John Marshall.) Then click to join and you're done.

In his post on Friday, my new co-blogger Ori Herstein takes issue with Jeremy Waldron's reading of the language in various human rights documents prohibiting "cruel, inhuman or degrading" treatment. The colloquy in the comments---between readers, including Waldron himself, and Herstein---is well worth reading. The question that divides Herstein, Waldron, Marty Lederman, and others is whether an authoritative text forbidding "A or B" forbids conduct that is just A and also forbids conduct that is just B (Waldron and others) or whether it only forbids conduct that is "A and B" (Herstein).

At first blush, Waldron seems obviously right about this as a matter of simple logic. Forbidding "A or B" means forbidding that which is A or that which is B. If someone says "I'd like strawberry sorbet. I don't want coconut sorbet or lemon sorbet," it would be inaccurate to say you could abide her wishes by providing her a dish of coconut sorbet so long as it contained no lemon sorbet also. Likewise, if the same sorbet aficionado says she "detests coconut and lemon sorbet," we would ordinarily think that she detests coconut sorbet and she detests lemon sorbet, although it's conceivable that this usage means only to impart that she detests coconut and lemon sorbet in combination.

As Lederman's comment notes, how we parse the various texts relating to "degrading" and like treatment of persons matters most for questions about detainees---and Waldron's lecture indeed focused on such issues. But the question of how to read language of this sort arises in other contexts as well. For instance, does a punishment survive scrutiny under the Eighth Amendment if it is undoubtedly "cruel" but sufficiently widespread that it is not "unusual?" Most prominently, tomorrow the Supreme Court will hear oral argument in District of Columbia v. Heller, in which the question is how to read the "right to keep and bear arms" in the Second Amendment.

Following the "Waldron logic" from above, we would say that this language protects a right to "keep arms" that is separate from the right to "bear arms." Such a reading would surely favor respondent, because it would neutralize the argument of the petitioner that circa 1791 the term "bear arms" was overwhelmingly a reference to military service rather than a generic way to say something like "use weapons for whatever purpose." To be sure, the respondent ALSO argues that the term "bear arms" was sometimes used to mean just that, pointing, among other places, to state constitutions, but these were nonetheless unusual uses of the term. The District points out in its brief that EVERY reference to the term "bear arms" in the Congressional debates over what became the Second Amendment was a reference to military service.

But so what? There is also a separate right to "keep" arms, the respondent argues, and keep has its natural meaning, which is to possess.

Here is where, in my view, the Herstein approach makes considerable sense. As Herstein explains in one of his comments, his is an "interpretive" approach. I take this to mean---and in any event I think it is correct to say---that we give meaning to the various terms in the canonical formulation of the right at issue by reference to its neighbors. Suppose the Constitution contained a freestanding provision stating "The right of the people to keep arms shall not be infringed" and another freestanding provision---perhaps one enacted at a different time---stating "A well regulated militia, being necessary to the security of a free State, the right of the people to bear arms shall not be infringed." In that case, we might well think that the most natural reading of the right to keep arms is a right to personal possession and use of firearms. But married as it is to the "bear arms" provision, with its introductory text, we should be tempted to read "keep" as connected to militia service as well.

In the end, then, the Herstein reading is not at all illogical. He agrees with Waldron that a prohibition on "cruel, inhuman or degrading treatment" means something different from a prohibition on just cruel treatment, or just inhuman treatment or just degrading treatment. What he is saying---and I agree---is that the different thing that the concatenation of these three prohibitions means is not necessarily a prohibition on the totality of what each of the terms would prohibit separately. Herstein's point boils down to the notion that the meaning we give to the words of an authoritative text depends on the context of those words. Even self-described textualists happily accept this notion.

Friday, March 14, 2008

Yesterday was the annual Law and Philosophy talk at Columbia University Law School. The guest speaker was NYU's Jeremy Waldron. The title of the lecture was: "Inhuman and Degrading Treatment: a Non-Realist View", which boiled down to observations on the meaning and a mapping of possible interpretations of the terms "inhuman" and "degrading"; key terms in most legal prohibitions on torture in national and international law. There was also a basic survey of interpretative theories of legal standards (objective, contextual and deliberative).

Waldron's is an atomistic reading of the rule - every term is read in isolation. If an action falls under one of the prohibiting terms ("inhuman" or "degrading") the conduct is prohibited.

I think that a holistic interpretive approach is warranted. The rule should not be read as a prohibition on 1) “inhuman" treatment or 2) "degrading" treatment, but rather as a single prohibition on "inhuman and degrading" treatment. Under the former reading each term stands alone, together forming two different and distinct prohibitions. Under the latter reading the values underlying each term interact to form a single prohibition.

As Waldron himself explains, there are other possible legal terms and catch phrases that do similar work as "inhuman” and “degrading", such as “cruel” or “Shocks the conscious” or “dehumanizing”. The exact terms that are used vary according to place, time and context. These general and somewhat vague standards are woven together in order to create a penumbra of meaning. Meaning that is hard to define, open for interpretation and is not captured by any single concept. Focusing on each term in isolation may cause one to miss the forest for the trees.

“Inhuman” and “degrading” bring different things to the interpretive pot. According to Waldron, “degrading” offers a concern for people’s dignity, honor and for treating people as ends in themselves. “Inhuman” offers a concern for basic human needs and a protection from unbearable treatment (such as the infliction of severe pain). When taken together, through an interpretive process, these concepts capture what is "inhuman and degrading". If taken apart, any conduct falling within the meaning of one prohibiting concept would always be prohibited, even if it happened to further the values underlying the other prohibiting concept. This might entail, at times, unintuitive interpretations.

Example. Jewish circumcision is essentially the physical mutilating of a male baby! It may very well qualify as “inhuman”. However, Jewish circumcision is also, according to some, a form of social initiation, of honoring, an acceptance of the child into the covenant of Abraham etc. - all good stuff of the sort the term “degrading” supposedly protects. According to the atomistic reading, circumcision is prohibited under the statute because it violates the prohibition on "inhuman” treatment. In contrast, circumcision is probably not prohibited by the prohibition on "inhuman and degrading" treatment. I contend that the latter interpretation is the correct one, which is better supported by a holistic reading of the prohibition of “inhuman and degrading" treatment.

Thursday, March 13, 2008

Spitzer's Scarlet Number scandal has rekindled a very old debate about the proper legal treatment of prostitution. Is it a victimless crime? Assuming, as seems obviously right, that a great many young women who trade sex for money do so reluctantly, under at least economic duress, is criminalization the right answer? Should law enforcement resources be targeted at pimps, prostitutes, and/or---as Eliot Spitzer himself contended not too long ago---johns?

These are important policy questions to which I do not have any easy answers, but I do want to point out what seems to me a mistaken assumption in this debate: The assumption is that prostitution is, as a matter of positive law, forbidden, and the hard questions are normative. Of course, I do not deny that prostitution is illegal in every state (save parts of Nevada) and the District of Columbia, nor do I deny that the Mann Act and other federal criminal statutes apply to some acts of prostitution. So I admit that the "law on the books" forbids prostitution, but the law on the streets does not, or at least does not consistently forbid prostitution.

Let's look at the law on the books in the District of Columbia:

It is unlawful for any person to engage in prostitution or to solicit for prostitution. The penalties for violation of this section shall be a fine of $500 or not more than 90 days imprisonment, or both, for the first offense, a fine of $750 or not more than 135 days imprisonment, or both, for the second offense, and a fine of $1,000 or not more than 180 days imprisonment, or both, for the third and each subsequent offense.

Now let's look at how the law on the books is perceived by businesspeople in the District. I'll do this by an admittedly unscientific but nonetheless informative method. I'll look in the online DC Yellow Pages. If you go to an online yellow pages, you will quickly find numerous entries for "escort" services that are pretty obviously prostitution services. So people who want to run prostitution rings feel sufficiently confident in the lack of law enforcement attention to advertise on the internet. If the government wanted to prosecute prostitution offenses, it would presumably be very easy to run sting operations.

I think Eliot Spitzer understood the basic fact of severe under-enforcement. He wasn't afraid of getting caught for solicitation because he knew that law enforcement doesn't pay much attention to that crime. Yes, he was foolhardy in the extreme to engage in structuring, but I suspect that he did that because, thinking prostitution was not "really" illegal, he spent his energy trying to conceal his membership in the Emperor's Club from his wife, the media, and the public. He simply wasn't focused on law enforcement.

Finally, a gigantic caveat. I AM NOT GIVING ANY FORM OF LEGAL ADVICE TO THE EFFECT THAT YOU CAN GO TO OR BE A PROSTITUTE WITHOUT BREAKING THE LAW. I AM SAYING THAT UP UNTIL THIS POINT, THE ODDS OF ANY PARTICULAR PROSTITUTE OR JOHN GETTING PROSECUTED FOR ANY PARTICULAR ACT OF PROSTITUTION WERE PRETTY DARN LOW.

The Name-the-Spitzer-Scandal Contest produced a number of fine entries, which you can read in the comments section. (Note to email subscribers. You'll have to go to the web version to see the comments.) I would have been happy to defer to the consensus choice of readers, but none seemed to emerge. And so I have to make the call myself.

I want to begin by criticizing my own initial entry, "Eliot Mess" or "Eliot's Mess." Although this does have multiple layers of meaning, it's at bottom just a play on the Governor's name and the fact that he used to be a hard-nosed prosecutor. It fails to capture what was ultimately the core of the scandal and the reason Spitzer could not survive it: hypocrisy. Spitzer's whole brand was a kind of squeaky cleanness, and the reference to Eliot Ness certainly captures that. However, "mess" is just too generic to capture that what Spitzer did was to violate the very norms he so assiduously sought to enforce against others.

A number of entries used references to Spitzer's secret identity as "Client 9," which is very promising, but none tied it in any specific way to the scandal's core. I tried to come up with some Client-9 ideas of my own. "Gov ________ Client 9" seemed like it had possibilities but I couldn't find anything to fit the blank. Words that rhyme with potion include "emotion," "commotion" and "ocean," but none quite goes anywhere. "Gov Commotion Client 9" is basically gibberish.

I then hit upon the idea of an homage to classic B movies. I'll take credit for "Client 9 From the Upper East Side" but this is both too long and again, more about the number 9 than the underlying scandal itself.

So I end up awarding myself the prize for . . . wait for it . . . "The Scarlet Number." Eliot Spitzer is not an exact substitute for Hawthorne's Arthur Dimmesdale, but the broad themes are the same: The seemingly most righteous man in the community, and its moral leader, is secretly guilty of the very sins he condemns in others. Only when he is about to be exposed does he come clean, and though partly redeemed by the act, it destroys him.

Meanwhile, back on the Volokh Conspiracy, my friend Randy Barnett is peeved at my characterization of his prior response to my FindLaw column as "academic esoterica." But I stand by my characterization, at least for the blogosphere. As one snarky comment on one of my earlier posts on this point noted, you know you've left the domain of a discussion for general readers when you are accused of error for confusing "ambiguity" with "vagueness," two words that most English language thesauruses treat as synonyms.

Still, to avoid hurt feelings or misunderstanding from any ambiguity and/or vagueness in my earlier comments, I'll say now that I think that the sorts of arguments that Barnett and others make in favor of their particular brand of originalism should be taken seriously and met. I just don't think that the best forum for doing so is this blog. And thus Barnett is not being entirely fair when he quotes one paragraph of one of my blog posts as expressing my "entire argument" for why a sufficiently broad account of original understanding---e.g., one which defines the original understanding at the level of quite abstract principles whose concrete content then gets filled in by later generations, including later generations of judges---robs originalism of its claim to provide determinate answers that are not dependent on the value judgments of the particular originalist of this sort. My "entire argument" would fill books and law review articles, and in fact it has, not just by me, but by numerous other scholars who argue that the living Constitution is not just desirable but inevitable, even for those who claim to be originalists.

So, I want to make just 2 points:

(1) Barnett appears to understand my statement in an academic piece that doctrine often trumps text as expressing a normative preference. In fact, I offered the point as a description of the longstanding practice of the Supreme Court. Barnett also seems to equate "doctrine" as I used the term in the article in question with "whatever I value," so that he concludes that my argument that doctrine often trumps text means I think my values trump text. In fact, "doctrine" was used by me in the standard way: to refer to rules and principles developed by the courts over time and protected by stare decisis. Just as I acknowledge in all my academic (and for that matter, non-academic) writing) that the Constitution does not simply mean whatever I would like it to mean, so I acknowledge that this is also true of constitutional doctrine. It would be very odd indeed, wouldn't it, if all constitutional doctrine happened to agree with whatever I happen to think best on normative grounds? Perhaps Barnett is the sort of radical legal realist who thinks constitutional doctrine is just that unconstraining---and that precedents can be overruled whenever courts disagree with them---but I am not (and I'm nearly certain that he isn't either).

(2) All I really meant by referring to the fine distinctions being drawn as "academic esoterica" was that the law reviews provide us ample opportunity to moot these issues. Isn't the whole point of blogging to be able to address juicier issues like the resignation of Client 9?

Wednesday, March 12, 2008

I have been struck recently by how differently Clinton supporters and Obama supporters view news coverage of the campaign. Clinton supporters are absolutely sure that the news coverage is strongly anti-Clinton, and often in a sexist manner. Meanwhile, Obama supporters see just the opposite: For example, a front-page NY Times story treats as breaking news the fact that Obama's first book admitted occasional cocaine usage in high school and college, with the body of the story going on about how his contemporaries don't recall this being so. What a lame excuse to tout cocaine usage. Or take the fact that today's front page of the NY Times has no story on Obama's victory yesterday in Mississippi, buying into the Clinton narrative that states with a lot of black people (or a lot of highly educated people or whatever) don't "count." I don't bring this up to rebut the Clinton camp's arguments so much as to confirm what psychologists have long known: People tend to see bias against their own view. (The classic study was of fans of Dartmouth and Princeton football. Each thought that the referees were unfairly biased against their team.)

We might thus say that there is a pronounced Rashomon effect to the news coverage: Each side perceives bias against its favorite. But now I want to float a conspiracy theory that, if true, would suggest the Rashomon effect is even greater than at first appears. I noticed this morning that while the front page of the NY Times print edition did not cover the Obama Mississippi victory, the front page of the Times on the web prominently displayed it. (Link here to what appeared on p. 23 in the print edition.) This is NOT a matter of more space on the website, since the Mississippi story was among the top web stories for many hours. Nor is it a matter of the paper having to go to press before the story was done, because it's the same story in the print and web editions. Instead, let me suggest my conspiracy theory (for which I have NO other evidence.)

For some time now, more people have read the Times online than in print, although the two audiences overlap some and may read the Times with different levels of interest. In any event, the online readers undoubtedly skew a lot younger, while the paper readers skew older. Thus, online readers skew toward Obama, paper readers toward Clinton. And so what we may have here is a policy of slanting coverage in web and paper versions to appeal to readership. In other words, the coverage that Clinton and Obama readers see as slanting against their respective favorites is actually slanted (relative to an admittedly arbitrary baseline) in favor of their respective favorites. If web readers were to switch to paper and vice versa, claims of bias would increase.

As I said, this is a generalization from one data point, so take this theory---wild speculation might be a more accurate description---with a pillar of salt.

Every good sex scandal eventually generates its share of fascinating legal questions, but first, the scandal needs a name. I'll reveal my own choice at the end of this entry (no peaking!) but first some general thoughts. "Spitzergate" is already making its way into the news but it's just sooooooo derivative, as is anything with "gate" in it. Indeed, at this point, calling any scandal a "gate" should be the equivalent of not giving the scandal a name at all, as "gate" has become a working synonym for "scandal."

What makes for a good scandal name? The name should be catchy, it should encapsulate what the scandal is all about, and if possible, it should have multiple layers of meaning. That's why I always favored "The Lewinsky Affair" back in the 1990s. The rhythm called to mind less comic episodes like "The Dreyfus Affair," even as "affair" had its clear double meaning.

The NY Post headline yesterday was "Ho No," which is both too low-brow for my audience and is not, in any event, a name for the scandal. The Village Voice, which refers to the matter accurately but uncreatively as "The Spitzer Sex Scandal," has an amusing wrap-up of the tabloid coverage here.

Okay, so now we come to the contest. In the comments section, you can pick a name for the scandal or vote for a name chosen by somebody else. There is no limit to the number of entries per reader, so go wild. And just to be a good sport, I'll open the bidding with my own choice: "Eliot Mess" or a variant such as "Eliot's Mess" or "the Eliot Mess." Although I came up with this on my own, I then googled it and got a ton of hits, so I can't claim any kind of originality.

Tuesday, March 11, 2008

In an extended post on the Volokh Conspiracy, Randy Barnett takes issue with both my account of originalism and my defense of living Constitutionalism. I try to avoid academic esoterica in my blog posts, so I'm not going to give a point-by-point rebuttal here. Instead, I'll use this post to express some skepticism about the utility of the term "originalism" once it is rendered compatible with living Constitutionalism, as Barnett and some others want to render it.

The key move for "compatibilists" (not my term) is to say that a good originalist can leave space for the living Constitution once the original meaning runs out. Barnett gives a nice example: To decide whether thermal imaging is a search for Fourth Amendment purposes, we can't consult the original public meaning of the term "search," because the term had no content with respect to that question in 1791. We are thus in the domain of what Keith Whittington calls "construction," which, unlike "interpretation," permits judges (and other constitutional interpreters) to consult more modern materials. The domain of construction is compatible with the living Constitution, and thus we all seem to get along.

But if that's so, it's hard to see what all the fuss was about. Either the domain of construction is large relative to interpretation, in which case originalism is a largely indeterminate theory, or the domain of construction is small relative to interpretation, in which case a jurisprudence of original understanding would look very different from the living Constitutionalism that we have. And if that's so, then originalism remains susceptible to the criticism that it leads to morally odious results (e.g., the 14th Amendment doesn't forbid most forms of official sex discrimination) or results that would be enormously disruptive of our legal/political order (e.g., much of the federal administrative state is invalid).

I would prefer the first of these reconciliations, which I regard as a near-total surrender by originalism. However, even then, I would have doubts. An originalist who thinks that the domain of construction is large relative to the domain of interpretation still thinks that within the domain of interpretation, the original understanding necessarily prevails. In my view, that's not required. When there is a clear original understanding, that understanding has much to recommend it. But I would not be prepared to say that it is entitled to a conclusive presumption of correctness. Suppose---as Section Two of the Fourteenth Amendment strongly suggests---that we think the original public meaning of the Equal Protection Clause does not forbid blatant, official sex discrimination by the state. (E.g., women can't be lawyers.) As I understand the newfangled (as well as the oldfangled) originalism, this means that the modern sex discrimination cases are simply wrong.

And if originalists are tempted to make an argument that in fact the public meaning of equal protection in 1868 was inconsistent with sex discrimination, then they should feel free to substitute an example that leads to some equally odious result (that is not clearly required by the text as currently read). If the originalist still gamely argues that the original understanding is compatible with modern understandings, that casts doubt on the claim that originalism is really driving interpretation (as opposed to construction).

Monday, March 10, 2008

In my latest FindLaw column, I use a recent speech by Justice Scalia condemning "the living Constitution" as an occasion to defend the metaphor and the philosophy for which it stands. My core point in the column is that Scalia and other originalists mischaracterize the position of "living Constitutionalists" as seeking to displace the Constitution with their own values rather than being bound by the Constitution and the original understanding. You can read the column to see whether you think I make a persuasive case.Here I want to tackle a related objection that Justice Scalia has made to non-originalist methods of constitutional interpretation. He has set it out most forcefully in his 1989 article in the Cincinnati Law Review, Originalism: The Lesser Evil. Here is what Justice Scalia says:

Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that “You can't beat somebody with nobody.”' It is not enough to demonstrate that the other fellow's candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote “non-Reagan,”' it is not very helpful to tell a judge to be a “non-originalist.”' If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the “fundamental values”' that replace original meaning to be derived from the philosophy of Plato, or of Locke, or Mills, or Rawls, or perhaps from the latest Gallup poll? This is not to say that originalists are in entire agreement as to what the nature of their methodology is; as I shall mention shortly, there are some significant differences. But as its name suggests, it by and large represents a coherent approach, or at least an agreed-upon point of departure. As the name “‘nonoriginalism”’ suggests (and I know no other, more precise term by which this school of exegesis can be described), it represents agreement on nothing except what is the wrong approach.

In the past when I've taught a seminar in constitutional interpretation, I've lampooned part of this argument by the following parallel: I have the right approach to constitutional interpretation, I say, and it's "Dorfism." All the other approaches--including originalism, fundamental values, representation reinforcement, pragmatism, etc.--disagree about all sorts of things. All they can agree on is that they are all "non-Dorfists." As this example is meant to show, the fact that the people who disagree with you also disagree among themselves does not mean that you are right and they are all wrong. One of them could be right and you and the others wrong.But of course Justice Scalia doesn't just say that non-originalists disagree among themselves. He also says that their methods are arbitrary and lead to nothing fixed, while the differences among originalists are relatively minor. (That's one reason why he calls originalism the "lesser evil" rather than the "unadulterated good." The other reason is that it sometimes leads to dreadful results, but Justice Scalia says that we needn't worry about that much because democracy will come to our rescue or originalist judges will turn "faint-hearted.")Is Justice Scalia right that originalism is a reasonably well-fixed methodology? An interesting new paper by Professors Tom Colby and Peter Smith of George Washington Law School says no. In Originalism's Living Constitutionalism, Colby and Smith contend, as they say in the paper's abstract, that:

despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally are in agreement only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the writtenness of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists - the framers of originalism, if you will¿as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that they have articulated - and continue to articulate - a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, we argue, originalism is a jurisprudential theory with its own living constitutionalism.

In my entry over the weekend, I described what I called the facts of Steele v. Isikoff. In fact, the case was decided on a motion to dismiss, and so these were merely the plaintiff's allegations, assumed to be true by the court for purposes of deciding the case. Michael Isikoff emailed me objecting to the characterization. Isikoff and Newsweek alleged in their answer that there was never a deal to keep Steele's comments off the record. A fair point. I apologize for the misimpression.

In his email to me, Isikoff also pointed out that the case had an alternative holding---namely, that even had there been an enforceable contract, it would not have been binding because Steele planned to lie. That's also true but not especially relevant. When a court offers two reasons for its decision, either of which would be independently sufficient to sustain the result, they are both treated as the holding of the case. This principle is set forth in comment o to section 27 of the Restatement 2d of Judgments (1982).

Finally, Isikoff stated:

Of course, Ken Starr's office later concluded that Steele lied in her secondset of conversations with me, denying what she said the first time andindicted on the basis that her second account was fabricated. Nine of 12 jurorsvoted to convict, the case ended in mistrial and Starr didn't retry. If you'rereally interested in the nitty gritty details, check out the afterward to thepaperback edition of my book, Uncovering Clinton.)

(Oh, and by the way, before I reported on our email exchange, I asked Mr. Isikoff whether he minded my treating it as "on the record." He said he did not.)

Sunday, March 09, 2008

The debate over whether to initiate new primaries in Florida and Michigan demonstrates, once again, the almost sacred status bestowed on arguments from democracy, elections and the principle of majority-rule. In recent American politics arguments anchored in these institutions have often functioned as trump cards - once they are drawn all debate must end. After all, who among us is against democracy?

Lately this dynamic is found not only in the commonly held view that Senator Barack Obama simply cannot oppose the inclusion of Florida and Michigan in the delegates tally or resist the alternative of a new vote, but also in the notion that the super delegates to the Democratic Party's convention must not cast their votes in defiance of the sanctity of the majority's vote; even though the very reason for having super delegates is to supplement and at times even override the outcome of the majority.

This fetishism with voting, elections and "democracy" has characterized the administration of George W. Bush from its unexpected dawn to its currently fading dusk: the obsessive counting and recounting of hanging chads; the insistence on the recent elections in the Palestinian territories, which led to the rise to power of Hamas; the calamity of "bringing democracy" to Iraq; the continuing dogmatic insistence on free elections in Cuba as a precondition for recognition and the obsessive hostility to "judicial activism."

Democracy, elections and majority rule are obviously important and valuable principles and institutions. But their value is not absolute. Arguments from democracy should not be used to silence or delegitimize arguments from other principles, such as efficiency, finality, stability, rationality, welfare and autonomy that often override the benefits of holding a popular vote. One would hope that the currently prevalent discourse of change would shed the often disastrous fetishism and religious-like devotion to the institutions of voting and elections – after all, "The Greatest Danger to the American Republics Comes from the Omnipotence of the Majority."

Saturday, March 08, 2008

What goes around comes around. President Clinton appointed Judge Colleen Kollar-Kotelly to the federal district court in 1997. Three years later, she had occasion to rule on a contract action by Julie Hyatt Steele against Newsweek, the Washington Post, and reporter Michael Isikoff. Steele talked to Isikoff about the alleged harassment and/or relationship between President Clinton and Kathleen Willey. Steele and Isikoff agreed that their discussion was "off the record," but Isikoff's story printed her name and statements anyway. Steele sued for breach of contract.

After rejecting the defendants' argument that the First Amendment protects a reporter in naming sources regardless of any agreement with those sources, Judge Kollar-Kotelly nonetheless ruled for the defendants. She held that under Virginia common law, an agreement between a reporter and a source that the latter's comments are "off the record" is not meant to create a legally enforceable contract. Judge Kollar-Kotelly relied on what was, at the time, the only previous published ruling on the question, a Minnesota Supreme Court case. In 2006, another federal district judge reached the same result applying Mississippi law. The basic reasoning in each of these cases is the same. Here's what the Minnesota Supreme Court said:

We are not persuaded that in the special milieu of media newsgathering a source and a reporter ordinarily believe they are engaged in making a legally binding contract. They are not thinking in terms of offers and acceptances in any commercial or business sense. The parties understand that the reporter's promise of anonymity is given as a moral commitment, but a moral obligation alone will not support a contract.... Indeed, a payment of money which taints the integrity of the newsgathering function, such as money paid a reporter for the publishing of a news story, is forbidden by the ethics of journalism.

Many people have criticized Samantha Power as naive for not establishing that her statement was "off the record" before calling Senator Hillary Clinton a monster, but my review of the case law indicates that even if Power had gotten such a commitment in advance, it would not have been enforceable. I realize that this is cold comfort for Professor Power.

Thursday, March 06, 2008

During the 2004 Presidential election campaign, the Swift Boat Veterans For Truth damaged not only John Kerry's White House prospects but also the image of so-called "527" organizations, so named for the section of the U.S. Tax Code that governs them. The Bush campaign never endorsed the Swift Boat smears, but it never fully denounced them either (even as Bush said that he respected Kerry's Vietnam War service). Bush instead denounced what he and his spokespeople called "shadowy 527 groups."

There are, however, two very different problems with 527s. One problem, the one dramatized by the Swift Boat ads, is that they can lie with impunity. They say things that the campaign of the opposing candidate or party can't say directly without fear of blowback.

The second problem is that 527s facilitate evasion of campaign finance limits. Wealthy individuals and groups can pour unlimited funds into political advertising by 527s, so long as they don't coordinate their activity with the campaigns. That second problem is real, but as I argued during the 2004 campaign in this FindLaw column, there's no good way around it given our First Amendment.

Meanwhile, in the current election cycle we are beginning to see an unhelpful blurring of the two objections. The fact that an ad comes from a 527 may well be a symptom of the First Amendment and campaign finance system we have, but it does not mean that the ad is false, misleading or unfair.

I have just finished reading a very entertaining and provocative book by Dan Ariely, called Predictably Irrational. It provides an overview of behavioral economics, an approach to human behavior within the economics discipline that rejects the neoclassical view that all (or even most) human behavior is rational. Ariely recounts wonderful experiments that demonstrate the degree to which human behavior is irrational but predictably so (hence the title). By knowing our own rational shortcomings, he argues, we can design our world to produce better outcomes.

I highly recommend the book, in part because the experiments are often amusing and sometimes shocking. In one experiment, for example, college students are asked a series of questions about their sexual proclivities under two distinct conditions: in one, the students are simply answering the questions in a calm state; in the other -- and I am not making this up -- the students are, by instruction, masturbating to pornography, having reached a point of high arousal. As it turns out, the unaroused subjects under-predict their inclination to engage in various sexual practices by comparison to their answers in the aroused state (including their likelihood of having unprotected intercourse, of having sex with someone they hate, and of spiking a date's drink to make her more willing to consent to sex -- the subjects were all male). Most of the experiments are far less controversial.

My interest in this post, in addition to encouraging people to read the book, is to apply some of the wisdom of behavioral economics to a limited new program in the New York City public schools in which students are paid money for high grades. The front page of Wednesday's New York Times has a story describing the new program. The story's tone is at least mildly favorable, suggesting that paying people money for performing well has made it "cool" for children to try to learn at school. Nothing in the article indicates the worry that Ariely (or that social psychology research in which I participated as an undergraduate in the late 1980's) exposes about such practices -- paying people to do things reduces their intrinsic desire to do them. When children in a classroom, for example, are told that they will receive a reward for drawing pictures, their desire to draw pictures during unsupervised time (when there is no expected reward) diminishes significantly relative to the desire of children who are asked to draw but have not been offered a reward (even if they are given a surprise reward after completing their drawings). It appears that when we watch ourselves behave, we draw inferences about our likes and dislikes in much the same way as we would about other people whom we might observe. If we see ourselves drawing pictures (or blogging, for that matter) without receiving a monetary reward, then we infer that we must enjoy drawing pictures (or blogging). If, on the other hand, we see ourselves drawing pictures in response to a financial incentive, then we infer, first, that we are only drawing because we want the money and second (and far more worrisome), that we don't really enjoy drawing pictures and will only do it in the presence of an extrinsic reward.

Ariely describes the phenomenon of transferring an activity from the social realm, in which people enjoy doing things for themselves and one another and do not keep rigid track of reciprocity, to the financial realm, in which one person gives another person only enough to receive a reciprocal benefit. Imagine, he says, that your mother-in-law prepares a delicious meal, and you want to tell her just how much you liked it. If you were to offer her $300, she would likely be outraged and insulted (perhaps in much the same way as a girlfriend or boyfriend might be insulted if you offered him or her a large sum of money after sex). Introducing crass exchange into the social realm undermines the norms that govern that realm.

What does all of this have to do with paying children for high grades? At some point between kindergarten and twelfth grade, schools manage to take the natural human instinct for learning and convert it into a reluctance bordering on hostility to learning that must be overcome by promises and threats. Indeed, this appears to be precisely the problem that is now being addressed with increasingly concrete forms of compensation, such as dollars and cents for academic performance. The manifest danger is that students will become even less inclined than they already are to study in the absence of an external reward. This would be unfortunate not only because the financial incentives may ultimately run out and spell the end of many people's education, but also because the potential fun of learning skills and information -- the joy that could last a lifetime for children once they are grown and no longer formally receiving an education -- is unwittingly and tragically destroyed.

One response, of course, could be that at least in some schools, children have already lost the internal love of learning that they once had, and payment for performance is the only way to get them to do what they really must do to survive in an increasingly complicated world: learn. If students really do hate studying, in other words, then we might as well do something to motivate them -- even if only for so long as the incentive is in place -- to do their work. If, for example, you want people to clean a cold laboratory that smells disgusting, it may be necessary to pay them (or to threaten to take something away from them). It is likely to be impossible to make them love and crave such work. I am not, however, prepared to accept without better evidence the premise that children's excitement about learning simply cannot be ignited and must therefore be replaced with compensation. I am dubious because the payment solution is really only an exaggerated version of the likely source of the problem -- the grading method that has been undermining intrinsic motivation in schoolchildren all along. Rather than give students money for receiving grades, themselves extrinisic motivators (albeit ones that rely on people's innate love of approval rather than the desire to acquire consumer products), why not pay closer attention to kindergarten children and the excitement and wonder that characterizes their first encounters with the world of knowledge? We are more likely to find the secrets hidden there than inside the folds of a wallet.